Right to Maintenance (Law)

To combat the social injustice and prevent the neglected people from falling into destitution, a universal legal weapon has been provided under Section 125 of the Criminal Procedure Code, 1973, which is not bound by the shackles of caste and religion and vests the right to claim maintenance for those people.

Who can claim maintenance under Sec. 125?
• Wife: Under Hindu law, for the wife to claim maintenance, marriage should have been solemnized in accordance with the Hindu rites and rituals and be valid under the Hindu Marriage Act, 1955.

Under Muslim law, women have the right to claim maintenance even after the conclusion of her iddat period. But marriage should be valid under Muslim Personal law.

Place of claim – where husband or wife resides or where the husband is physically present currently or where husband last resided with his wife.

• Children: Both legitimate and illegitimate male and female children can file for maintenance until they reach the age of majority. But adult unmarried daughters can claim for maintenance from their fathers.

• Parents: Mother and father can also claim maintenance from any of their children or all of them.

Place of Claim – where they reside or the child resides.

Important Points to remember while claiming maintenance:
• The person claiming maintenance should be incapable or unqualified to earn.
• The person must have neglected the claiming party or refused to pay maintenance.
• Burden of proof lies with the husband that he did not refuse or neglect to pay maintenance.
• The standard of living matters the most. Husband is legally obliged to restore the previous (before separation) standard of living off her wife. It should not be more or less than the amount required to restore the same.
• The interpretation of live-in relationships has shifted from a casual look to a serious one where a valid marriage may be presumed.
• Maintenance is usually on a monthly basis.
• A financially unsound or physically incapable person would not be forced to provide remuneration.
• Proceedings u/s 125 are civil in nature.

Filing claim for Maintenance under Sec. 125 (Process):
1. The claim for maintenance is filed before the Judicial Magistrate 1st class. 
2. The period of limitation is 1 year from the date the maintenance fell due.

Grounds of Rejection of Claim:
• If the woman has committed adultery;
• If she was living separately from her husband without any just cause;
• If she has remarried;
• If both of them were living separately with mutual consent;
• If she was aware of her husband’s first marriage which is still in force.

Statutory law References:
Section 125 of the Criminal Procedure Code, 1973

Important Judgments:
Chanmuniya v. Chanmuniya Virendra Kumar Singh Kushwaha and Anr (2011) 1 SCC 141
Mohd. Ahmed Khan v. Shah Bano Begum 1985 SCR (3) 844
Danial Latifi v. Union of India 2001 (7) SCC 740 
Shah Bano v. Imran Khan AIR 2010 SC 740
Mansi Vohra v. Ramesh Vohra CRL.M.C. 2474/2012

If not complied with the order for maintenance, the court-
• can issue a warrant for levying the amount due;
• can attach the property and sell to recover such due amount;
• may award imprisonment for a maximum of 1 month after the execution of the warrant or until payment if sooner made.

Restitution of Conjugal Rights (Law)

Marriage is a religious sacrament which constitutes the very basis of a social entity.  It is based on duties, rights, affection between husband and wife. But when such affection and togetherness goes into hiding, it is necessary to unearth the same through various matrimonial remedies one of which is the restitution of conjugal rights. The word ‘restitution’ refers to restoration and ‘conjugal’ refers to marriage or relating to it, i.e., comfort and affection of the spouses towards each other. When the relation goes haywire, people leave their partners in the heat of the moment or ongoing callousness. If any of the spouses leaves his/her counterpart or withdraws from the society of the other without any reasonable excuse, the latter is entitled to file a petition for the restitution of conjugal rights. The duty of the court is to restore their love and affection by making them live with each other forcefully.

Essentials to be fulfilled:

• The spouse must have withdrawn from the society of another,

• No reasonable excuse for such withdrawal,

• Aggrieved spouse files for restitution of conjugal rights.

Important Points to remember while filing a petition for Restitution of Conjugal Rights:

• Under Hindu Law, the petition is filed under Section 9 of the Hindu Marriage Act, 1955 before the district court.

• Muslims are not adjudged by any specific provisions and are guided by general laws only. Moreover, under Muslim law, a suit is filed before the civil court and not a petition.

• The burden of proof is twofold – first, the petitioner needs to establish that the respondent has left from his/her society and second, the reasonability of the excuse becomes due on the one who left. 

• In reality, it’s not possible to compel the person to start living with his/her corresponding person through a decree of the court. The court can attach the properties of the judgment debtor in order to forcefully execute the decree.

• If the decree remains unexecuted for more than one year, it becomes a valid ground for divorce under Section 13(1A) of the Hindu Marriage Act, 1955.

Step-by-Step Petition Filling Process:

1. File the petition before the District Court having territorial jurisdiction in the matter. The copy of such petition would be sent to the respondent.

2. The court would call them for counseling to settle the matter.

3. Counselling may take 4-5 sessions.

4. In the background, the wife may file for legal expenses from her husband under Sec. 24 of the Hindu Marriage Act, 1955.

5. If accepted by both the parties, the petition for restitution is granted.

Grounds of Rejection of Petition:

• If the petitioner was involved in some kind of matrimonial misconduct. For e.g., adultery, desertion, domestic violence, etc.

• If the respondent has a valid claim to any matrimonial relief.

Misuse of the petition:

Misuse of this remedy is widely in practice where one spouse files such petition for the restitution of conjugal rights with the knowledge that his/her counterpart would not agree for the restoration of such comfort and cohabitation. Subsequently, it becomes a legal excuse for divorce.

Statutory law References:

Section 9, 13(1A) & 24 of the Hindu Marriage Act, 1955

Important Judgments:

Saroj Rani v Sudarshan Kumar Chadha AIR SC 1984 1562

T. Sareetha v. T. Venkatasubbaiah A.I.R. 1983 A.P. 356

Do(s) and Don't(s):

• If you (husband) face the threat of Sec. 498A of IPC, don’t file for restitution of conjugal rights.

• If the petition has been rejected, it is better to file for divorce.

SC’s landmark decision to Protect Online Freedom of Speech

Before 2015, no sane person would have thought that the knees of Section 66A of the Information Technology Act, 2000 would go weak and that too against one of the most powerful persons of Maharashtra. In March 2015, Supreme Court of India struck down Sec. 66A which restricted the freedom of speech and expression under Art. 19(1)(a) while upholding the people’s right to know.

How it all began

In 2012, two girls allegedly posted some negative comments against the total shutdown in Mumbai in pursuance to the death of Shiv Sena leader the late Bal Thackeray. After their arrest, a Bristol University astrophysics graduate, Shreya Singhal, filed a PIL before the Supreme Court of India where she challenged the undue restrictions on online speech which had been acknowledged under Sec. 66A of the Information Technology Act, 2000.

Section 66A reads as follows: “Any person who sends by any means of a computer resource-

a)      any information that is grossly offensive or has a menacing character; or

b)      any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult shall be punishable with imprisonment for a term which may extend to three years and with fine.”

Contentions of the Parties to the Case

Section 66A was not originally enacted with the statute of 2000 but inserted by way of 2009 amendment. The petitioner’s contention circled around the fact that restrictions under Sec. 66A are in clear violation of the right to free speech and expression enshrined under Art. 19(1)(a) of the Constitution. Causing of annoyance, hatred, danger, obstruction, insult, ill-will, insult, criminal intimidation, injury, inconvenience are not hit by the conditions of Art. 19(2). The public has the right to know various kinds of views on a particular topic. However, it was countered by the respondents with the contention that the legislature is in the best position to understand and cater to the needs of the people.

The Judgment

The Apex Court placed focus upon what is the content of “freedom of speech and expression”. It stated three concepts in this regard – first is a discussion, second is advocacy and third are incitement. Discussion and advocacy form the core of Art 19(1)(a) but when it effects incitement, Art. 19(2) comes into play. However, what may be offensive to one may not be to other. It observed that the whole discussion centered around public disorder and ‘reasonable restrictions’ can be interpreted on the lines of Chintaman Rao v. State of Madhya Pradesh, [1950] S.C.R. 759, Mohd. Faruk v. State of Madhya Pradesh & Ors., [1970] 1 S.C.R. 156. It also stated that written words causing inconvenience, danger, annoyance, etc. does not count as an offense itself and are vague and overbroad. The court further observed that it is bound by the law laid down in Ram Manohar Lohia’s case [1960] 2 S.C.R. 821 and held that “Section 66A is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth.” The bench of Justice J Chelameswar and Justice Rohinton F Nariman further supplemented their findings by stating that government’s assurance to prevent misuse of the provision will not matter as governments come and go.

Surprisingly, a data released by National Crime Records Bureau (NCRB) in 2015 showed that 2,402 people were arrested under Sec. 66A in 2014.

Right to be forgotten- Kerala High Court asks Indian Kanoon to remove name of the rape victims from Judgements

In 2017, a rape victim filed a petition before the Kerala High Court to pass an order directing the online web portal ‘indiankanoon.com’ to strike off her name published in a Kerala High Court judgment on its website and also prevent her name from being visible in the search results of Google, Yahoo, etc.

Facts:
The name of the rape victim appeared online on ‘indiankanoon.com’ in the judgment of the Kerala High Court which was passed in regards to her. Moreover, the judgment appeared in the general search results of Google and Yahoo.

Legal Contention:
She stated that the publication of her name was without authorization/prior permission from the court or her which is in clear contravention of the mandate provided under Rule 5 of the Information Technology (Reasonable Security Practises and Procedures and Sensitive Personal Data or Information) Rules, 2011. Her grievance extended to the search results of Google and Yahoo.
According to her, the publications violated her right to privacy and right to a dignified life enshrined under Art. 21 of the Constitution of India as it has diminished her job prospects and social life which has brought upon further shame and destitution upon her. Furthermore, the essence of Section 228A of IPC is also diluted.

Section 228A of the Indian Penal Code:
Under Section 228A of IPC, disclosure of the identity of a rape victim may amount to two years imprisonment and fine. She also contented her ‘right to be forgotten’. In State of Karnataka v. Puttaraja AIR 2004 SC 433, the Apex Court of India held that the names of the rape victims should not be mentioned in court cases keeping in mind the social object of preventing social victimization or ostracism of the victim and hence, in line with Sec. 228A.

What is “Right to be Forgotten”?
The roots of this phrase ‘Right to be Forgotten’ can be traced back to the ‘Right to Oblivion’ in French Jurisprudence. The rationale of such a principle was to give an opportunity to the offenders to object against the publication in regards to their crimes and strike off their names for an effective social integration. This right went into practice in the European Union and Argentina as well and has been seen as a tool for social integration and development of a person. In Vasunathan v. Registrar General, 2017 SCC OnLine Kar 424, Karnataka High Court, while directing its registry to remove the name of the victim from being reflected in the public domain, observed, “This is in line with the trend in Western countries of ‘right to be forgotten’ in sensitive cases involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned.”
Recently, a tussle has been going on between France and Google over the ‘right to be forgotten’ where France is trying to impose such rule upon Google to censor its search results. In India, there are no provisions under Information Technology Act, 2000 or any other statutes which prevents Google or any other search engine to enforce the ‘right to be forgotten’ as the scope of public domain is pretty scary. It will wrangle anything out from the world. To prevent such anomalies, the weapon of Judicial Activism is a requirement.

Order
Recognizing the ‘right to be forgotten’ and confidentiality of her identity under Sec. 228A of IPC, Justice Shaji P. Chaly of the Kerala High Court directed the web portal indiankanoon.com to remove her name from its website. However, no such direction has been passed towards Google and Yahoo.

Victimization under 498A IPC

When a complaint, true or false, is filed by a wife against her husband and against relatives of her husband in a police station, police officials usually call both parties to settle down the dispute or pass on the complaint to the women cell so that both parties can try to reach a compromise to the satisfaction of complainant. 

If the parties are still unable to solve the dispute amicably, then the women cell usually direct parties to go for mediation. If the dispute remains unresolved, then the matter comes back to women cell then police officials register it as FIR. 

Important points: -

1. If the accused is not arrested, then he should file for anticipatory bail as early as he can.
2. If any of the accused is arrested, then they can apply for regular bail.
3. If the arrest warrants are issued, the accused must surrender as soon as he can before the police. It becomes easy to defend the case in the court if accused has willfully surrendered.
4. Sometime these accusations can be placed out of sheer outburst of the sense of revenge, and wife may realize the futility of her actions with the passage of time, therefore husband shouldn’t put more efforts to expedite the judicial process and must wait for things to settle down and let them take its normal course.  


Statutory law Reference.

1. 498A IPC

Prevention of Arrest

1. When a FIR is lodged against husband and his relatives, one should apply for an anticipatory bail for all involved. Even if  one of accused gets the anticipatory bail, others can substantiate their claim on that basis
2. Try to put your case for mediation with the help of your lawyer.
3. Try to schedule your case for Lok Adalat hearing with the help of your lawyer so that it may lead to a compromise.


4. Try your best to negotiate and settle the dispute with the accuser and her parents.
5. If the husband and his relatives have not committed any offense such as demand for dowry or physical abuse, then he has every right to defend his rights and court take cognizance of unsubstantiated accusations.